 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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January 8, 2003 Ms. Hadassah Schloss
OR2003-0155 Dear Ms. Schloss: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 174726. The Texas Building and Procurement Commission (the "commission") received a request for information relating to bidding for RFP 303-2-10338. Although you do not state a position on the public availability of the information, you state that release of the information may implicate the proprietary interests of the third party bidders and thus may be confidential pursuant to section 552.110 of the Government Code. Subsequent to the commission's receipt of this request for information, the commission received a letter from the requestor narrowing the scope of the request. See generally Gov't Code § 552.222 (providing that a governmental body may ask the requestor to clarify the request if what information is requested is unclear to the governmental body); see also Open Records Decision No. 663 at 5 (1999) (discussing requests for clarification). You advise that you faxed all parties notification of the narrowed request. You further state that you have released some responsive information to the requestor. We have reviewed the submitted information. Pursuant to section 552.305 of the Government Code, you notified the five third party bidders, Harvey-Cleary Engineers & Builders ("Harvey-Cleary"), FTWOODS Construction Services, Inc. ("FTWOODS"), Brath, Inc. ("Brath"), Landmark Construction Corp. ("Landmark"), and Jahn Construction, Inc. ("Jahn"), of the request and of their right to submit arguments to this office as to why the information should not be released. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (determining that statutory predecessor to § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under Public Information Act in certain circumstances). We note that an interested third party is allowed ten business days after the date of its receipt of the governmental body's notice under section 552.305(d) to submit its reasons, if any, as to why requested information relating to that party should be withheld from disclosure. See Gov't Code § 552.305(d)(2)(B). You have submitted a response from Brath, indicating that it does not object to the release of the requested information in this instance. Therefore, we find that the commission must release the submitted information pertaining to Brath in its entirety. In addition, as of the date of this letter, we have not received any comments from FTWOODS, Landmark, or Jahn explaining why any of their respective bid information should not be released to the requestor. Therefore, we have no basis to conclude that the release of information pertaining to these companies would implicate the companies' proprietary interests under section 552.110 of the Government Code. See Open Records Decision Nos. 552 at 5 (1990) (stating that if governmental body takes no position, attorney general will grant exception to disclosure under statutory predecessor to Gov't Code § 552.110(a) if third party makes prima facie case that information qualifies as trade secret under section 757 of Restatement of Torts, and no argument is presented that rebuts claim as matter of law), 661 at 5-6 (1999) (stating that business enterprise that claims exception for commercial or financial information under Gov't Code § 552.110(b) must show by specific factual evidence that release of requested information would cause that party substantial competitive harm). Accordingly, the commission may not withhold the submitted information pertaining to FTWOODS, Landmark, or Jahn from disclosure pursuant to section 552.110 of the Government Code. Harvey-Cleary, however, did respond to the commission's section 552.305 notice and claims that its bid documents are excepted from disclosure under section 552.110 of the Government Code. Section 552.110 protects: (1) trade secrets, and (2) commercial or financial information the disclosure of which would cause substantial competitive harm to the person from whom the information was obtained. See Gov't Code § 552.110(a), (b). Section 552.110(a) protects the property interests of private parties by excepting from disclosure trade secrets obtained from a person and privileged or confidential by statute or judicial decision. See Gov't Code § 552.110(a). A "trade secret" may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives [one] an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. It differs from other secret information in a business in that it is not simply information as to single or ephemeral events in the conduct of the business, as for example the amount or other terms of a secret bid for a contract or the salary of certain employees. . . . A trade secret is a process or device for continuous use in the operation of the business. Generally it relates to the production of goods, as for example, a machine or formula for the production of an article. It may, however, relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management. Restatement of Torts § 757 cmt. b (1939); see also Hyde Corp. v. Huffines, 314 S.W.2d 763, 776 (Tex. 1958); Open Records Decision Nos. 255 (1980), 232 (1979), 217 (1978). There are six factors to be assessed in determining whether information qualifies as a trade secret: (1) the extent to which the information is known outside of [the company's] business; (2) the extent to which it is known by employees and others involved in [the company's] business; (3) the extent of measures taken by [the company] to guard the secrecy of the information; (4) the value of the information to [the company] and to [its] competitors; (5) the amount of effort or money expended by [the company] in developing this information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Restatement of Torts § 757 cmt. b (1939); see also Open Records Decision No. 232 (1979). This office must accept a claim that information subject to the Public Information Act (the "Act") is excepted as a trade secret if a prima facie case for exemption is made and no argument is submitted that rebuts the claim as a matter of law. Open Records Decision No. 552 (1990). However, we cannot conclude that section 552.110(a) is applicable unless it has been shown that the information meets the definition of a trade secret and the necessary factors have been demonstrated to establish a trade secret claim. Open Records Decision No. 402 (1983). Section 552.110(b) protects "[c]ommercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained[.]" Gov't Code § 552.110(b). This exception to disclosure requires a specific factual or evidentiary showing, not conclusory or generalized allegations, that substantial competitive injury would likely result from release of the information at issue. Gov't Code § 552.110(b); see also National Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974); Open Records Decision No. 661 (1999). Based on our review of Harvey-Cleary's arguments and the submitted information, we determine that Harvey-Cleary has not established a prima facie case that any portion of its proposal is excepted from disclosure under section 552.110(a). Harvey-Cleary also asserts that competitive injury would result from the disclosure of information in its bid documents concerning work experiences, business methodology, and Harvey-Cleary's approach to determining the bid amount for contract proposals. Upon review, however, we find that Harvey-Cleary has provided general, conclusory statements that release of such information would cause Harvey-Cleary substantial competitive harm, and has not substantiated its comments with specific factual evidence. Thus, we are unable to determine that section 552.110(b) applies to any of the information pertaining to Harvey-Cleary. See Open Records Decision No. 319 at 3 (1982) (information relating to organization and personnel, market studies, professional references, qualifications and experience, and pricing are not ordinarily excepted from disclosure under statutory predecessor); see also Open Records Decision Nos. 661 (1999), 509 at 5 (1988) (stating that because costs, bid specifications, and circumstances would change for future contracts, assertion that release of bid proposal might give competitor unfair advantage on future contracts was entirely too speculative), 319(1982). Accordingly, we determine that the commission may not withhold any portion of the submitted information pertaining to Harvey-Cleary's bid under section 552.110 of the Government Code. We note that the information at issue contains a bank account number that is subject to section 552.136 of the Government Code. Section 552.136 provides in relevant part: (a) In this section, "access device" means a card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with another access device may be used to: (1) obtain money, goods, services, or another thing of value; or (2) initiate a transfer of funds other than a transfer originated solely by paper instrument. (b) Notwithstanding any other provision of this chapter, a credit card, debit card, charge card, or access device number that is collected, assembled, or maintained by or for a governmental body is confidential. The commission must withhold the bank account number that we have marked pursuant to section 552.136 of the Government Code. In summary, we have marked a bank account number that must be withheld under section 552.136 of the Government Code. The remainder of the submitted information must be released to the requestor. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the Texas Building and Procurement Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, David R. Saldivar
c: Mr. Marlon Moore
Mr. Dennet R. Wenske
Mr. Robert F. Stephenson
F. Todd Woods
Mr. Jerry H. King
Mr. Daniel Jahn
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |